December 20, 2005

Presidential Wiretapping: Disaggregating the Issues

The legal questions raised by President Bush's wiretapping seem to me complex, not simple. Here is a rough guide: (1) Did the AUMF authorize his action? (2) If not, does the Constitution give the President inherent authority to do what he did? (3) If the answer to (1) or (2) is yes, does his action violate the Foreign Intelligence Surveillance Act (FISA)? (4) If the answer to (3) is yes, is FISA constitutional, or is it inconsistent with the President's inherent authority? (5) If the answer to (1) or (2) is yes, does the wiretapping nonetheless violate the Fourth Amendment?

I have already suggested that it is plausible to give a "yes" answer to (1), certainly if we do not consider the effect of FISA. It needn't be conclusive that Congress didn't "intend," with the AUMF, to authorize wiretapping. Once the AUMF is in place, the President can certainly engage in surveillance of some kinds, eg, surveillance of Al Qaeda in Afghanistan. It isn't a big stretch to say that he can engage in surveillance of people with known Al Qaeda affiliations who are calling to or from the United States. (If Osama Bin Laden is calling New York, it's clear, I think, that the AUMF allows the President to listen to the call.) If there were doubt about the President's power under the AUMF, a plausible claim of inherent power, under (2), would justify reading the AUMF to allow the President to engage in surveillance. (Of course nothing I have said suggests that under the AUMF, the President can engage in surveillance of people without a tie to organizations or nations associated with the attacks of 9/11.)

What about (2)? The Supreme Court has not decided this question, and some lower courts seem to have ruled in the President's favor on this one. Orin Kerr, at the Volokh Conspiracy, has an excellent post that covers this issue (and others I am discussing here). It is not clear that the President is right on (2), but it isn't clear that he is wrong.

On (3), the question is how to square the AUMF with FISI. It isn't unreasonable to say that the more specific statute, FISA, trumps the more general, so that the wiretapping issue is effectively governed by FISI. But if surveillance is taken to be an ordinary incident of war, and if the President has a plausible claim to inherent authority, this argument is substantially weakened. Note that the President isn't forbidden, by the precedents, from arguing that FISI is unconstitututional insofar as it forbids him from engaging in the relevant activity (item (4) in my catalogue). I am not sure how strong this argument is; if it is pretty strong, there is good reason to read the AUMF to allow the President to wiretap, and not to read FISI so as to forbid wiretapping, simply to avoid the hard constitutional question.

What about the Fourth Amendment? It turns out that the President has a plausible claim here as well (again see Orin Kerr's post for helpful discussion) -- not necessarily decisive, but plausible. The cases do not clearly support the view that when monitoring (a) an international call involving (b) someone with an Al Qaeda connection (c) to or from the United States, the President must, (d) under post-9/11 conditions, obtain a warrant. (The AUMF is helpful to the President here.) But to the extent that the Fourth Amendment claim is strong, there is reason to interpret the AUMF narrowly, so as to avoid that question, and also to interpret FISI broadly, also to avoid the Fourth Amendment question. On the other hand, the President's claim of inherent authority, if plausible, raises doubts about this approach.

This is meant as an exceedingly tentative analysis, with the purposes of disaggregating the issues and of suggesting that there are several unresolved questions here.

» Round Up: Legal Response To Surveillance Story from Joe's Dartblog
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Tracked on December 23, 2005 at 08:01 PM

» Conservative Blogs are Wrong - A Roundup from DrewMiller.net
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Tracked on December 23, 2005 at 09:58 PM

» NSA Stuff from Pete The Elder
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Tracked on January 05, 2006 at 10:25 AM

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Tracked on January 05, 2006 at 10:51 AM

» WAR/LAW: Spying on Al Qaeda in the United States from Baseball Crank
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Tracked on January 12, 2006 at 06:24 PM

» Be Careful what you Wish For... from Confederate Yankee
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Tracked on September 11, 2007 at 06:33 PM

Comments

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I'm no expert on "inherent" executive authority, but the idea that the President may have the authority secretly to violate a statute forbidding the surveillance of U.S. citizens inside the U.S. (or to treat this statute as unconstitutional) whenever he can characterize his action as an "ordinary incident of war" is alarming. What else might the President have the "inherent" authority to do? What else might Congress unsuspectingly have authorized in the AUMF? Black bag burglaries? Incommunicado detention? The censorship of newspaper editors? Are these tough questions too?

FISA contains an exception for searches otherwise "authorized by statute." Why not follow the analysis set out in Hamdi? Recall that in Hamdi, a statute provided that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” The Supreme Court bracketed the Article II issues and focused on the statutory meaning, finding that the AUMF constituted an "Act of Congress" for purposes of the exception. Why shouldn't AUMF be read as an 'authorizing statute' under FISA?

As for Al's post: see Hamdi. (Is Hamdi a dirty word? Opponents of the program in question have a hard time writing it.)

It is the secrecy that I wonder about here. Even when Lincoln suspended habeaus corpus and FDR interned the Japanese, as far as I know it wasn't a matter of secrecy. That Bush is calling the publication of this information "shameful" is slightly disturbing inasmuch as he doesn't seem to want us to know about what powers he's exercising. (Presumably our enemies are not so witless as to think that we still have privacy law left, and are acting based on the assumption that anything we physically can do to gain intelligence, we are doing. Also I doubt that AQ has many legal experts to tease out whether FISA, AUMF, PATRIOT, Art. II, etc. would permit such&such action.)

Secrecy creates the persistent Catch-22 that we cannot properly debate these matters without full information, and we allegedly cannot have full information because this would harm national security. For extremists on both sides, there is no Catch-22: the strong Bush supporters assume he is doing exactly what is necessary to prevent another 9/11; and the strong Bush opposers assume he is unconstitutionally and illegally grabbing for power to silence his enemies. The rest of us, however, are left sincerely puzzled as to what is going on and whether we should be worried about it. I suppose we can just assuage our concern with gambling on it...http://www.blogdenovo.org/archives/001158.html

One additional possibility is that the AUMF provided authority until the (later-in-time) Patriot Act amendments to FISA revealed a congressional belief that FISA's warrant requirements remained unmodified by the AUMF.

As to the 4th Amendment issue, it really does seem that the Amendment ought to trump any statute one wishes to discuss.
As our recently deceased professor of Labor Law and Evidence,Bernie Meltzer, used to comment, "Never consult the statute unless the cases are unclear." However, he wasn't discussing constitutional provisions. The two things should not be conflated.

Do we know what the facts of the actual conversations are that the President has eavesdropped on (i.e., U.S. citizens or not, originating within or without the U.S., terminating within or without the U.S.)?

Do we assume that the President has the authority to listen to non-citizens even on calls that originate and terminate within the U.S.? On NPR this evening there was some discussion about the issue- one of the commentators discussed-hypothetically- the question of the President listening to a U.S. citizen on a purely domestic phone call. I thought from the media's analysis that this is what was actually at issue- eavesdropping on the phone calls of U.S. citizens?

Is there a webpage that includes audio archives of Supreme Court cases other than the Oyzez (sp) site? The Oyzez (sp) site only has an audio archive for a limited number of cases. I would like to listen to a number of certain cases including Domino's Pizza, Inc., et al. v. John McDonald. Where might I listen to the oral arguments online? If there is no exhaustive archive of Supreme Court cases, someone should create one.

"Under his argument, Bush could continue to ignore the requirements of any law that stands in his way. What could Congress do? Congress could try to enact a law to clarify that it wants the President to abide by existing laws. Of course, the President could veto that law, but suppose Congress overrode the veto. According to the President's logic, he could still say that his "inherent authority" allows him to ignore it."

What are the limiting factors to the President's "inherent authority"? If there are no plausible constraints, then is it really possible that the Constitution grants the Executive the powers of a dictator or monarch?

Your argument appears to hinge on the AUMF superseding FISA. How that happened in your analysis is not explained. Indeed, it seems clear to me it is inexplicable.

Granting you the assumption about the inherent authority of the President to do this as C-i-C and/or granting that the AUMF authorized the President, as per Hamdi and enemy conbat detentions, you seem to believe that once that occurs Congress has relinquished its power forever or that its authorization must be unconditional.

But Hamdi clearly decided that that view is just plain wrong. Thus while the Hamdi Court opined that the AUMF granted the President the authority to act as C-i-C as described therein, the Hamdi Court also found that the Congress has not suspended habeas corpus and the procedures related thereto, including the grant of jurisdiction to Article III courts to hears petitiions from enemy combatants.

In short, Hamdi, it seems to me, proves your assertions wrong.

You have not offered an explanation for this flaw in your argument it seems to me.

Armando,
I don’t follow your reading of Hamdi. The Court held that the AUMF qualifies as an Act of Congress for purposes of 18 U.S.C. §4001(a) because detaining enemy combatants falls within the ambit of “all necessary and appropriate force,” and that “it is of no moment that the AUMF does not use specific language of detention.” One could argue that the AUMF also qualifies as a statute authorizing electronic surveillance for purpose of FISA, with it once again being of no moment that the AUMF doesn’t mention eavesdropping. Certainly an argument could be made that electronic surveillance wasn’t authorized by the AUMF, although I think the better argument is that it was, with the scope of the electronic surveillance being the real issue.
The Court’s second point in Hamdi is that Hamdi doesn’t suspend habeas corpus. Qualifying as an act of Congress for purposes of 18 U.S.C. §4001(a) and FISA are not in the same league as a suspension of habeas corpus. It is perfectly logical to read Hamdi as saying much like with 18 U.S.C. §4001(a), the AUMF qualifies as a statute for purpose of FISA without contradicting the holding regarding habeas corpus. It has nothing to do with Congress relinquishing its power forever. It has everything to do with the scope of the AUMF and whether it allows the President to ignore FISA the same way it allows him to ignore 4001(a). The FISA question is a closer call that the 4001(a) question, no doubt, but it isn’t an unreasonable view by any stretch.

The AUMF suggests that Congress was primarily interested in preserving the War Powers Act, rather than in preserving FISA (including FISA's 15-day wartime limit on warrantless searches). The plain language of the AUMF indicates that Congress was concerned that the need for "necessary and appropriate force" might be construed to supercede the War Powers Act absent a statement to the contrary. Congress went out of its way in the last sentence of the AUMF to make clear that it was preventing the War Powers Act from being superceded, WITHOUT preventing other statutes from being superceded.

I'm not suggesting that the AUMF repealed any part of the FISA, but rather am suggesting that the AUMF superceded the FISA as applied to situations where FISA prevents the use of "all necessary and appropriate force" against Al Qaeda. So --- notwithstanding what Michael Glennon mentioned above in this thread --- it made perfect sense for Congress to treat FISA as unrepealed, even subsequent to passage of the AUMF.

As implicitly acknowledged in the AAG's letter on this subject, I think the real problem with applying Hamdi to this case is 18 U.S.C. 2511(2)(f), which provides that the procedures in the relevant chapters of Title 18 and FISA are the "exclusive means" by which electronic surveillance covered by FISA may be conducted.

I believe that one would have to hold that the 2001 AUMF actually implicitly repealed 18 USC 2511(2)(f) in order for the 2001 AUMF to authorize surveillance that would violate FISA. The AAG argues that FISA's criminal offense provision somehow incorporates any other authorized procedures into FISA, but that argument is unsupported by the language of the provision in FISA and would render 18 USC 2511(2)(f) a meaningless exercise (because why refer to the procedures in FISA as the exclusive means if FISA incorporates the procedures pursuant to any other statute? Indeed, why refer separately in 2511(2)(f) to both the procedures in Title 18 and FISA, since FISA would have incorporated the procedures in Title 18 already through its criminal offense provision).

So, 18 USC 2511(2)(f) raises an issue that was not raised in Hamdi. There was no equivalent to 2511(2)(f) that actually needed to be repealed in Hamdi--the only question was whether the 2001 AUMF was an Act of Congress authorizing detention.

And if the 2001 AUMF implicitly repealed 18 USC 2511(2)(f), what other provisions in federal law did it implicitly repeal? I think the open-ended nature of that question--not just what else did the 2001 AUMF authorize, but what other federal laws did the 2001 AUMF repeal?--is what has people deeply concerned about the Administration's argument. And I am very skeptical about the notion that Congress actually intended the 2001 AUMF to implicitly repeal laws like 18 USC 2511(2)(f).

The Court held that the AUMF qualifies as an Act of Congress for purposes of 18 U.S.C. §4001(a) because detaining enemy combatants falls within the ambit of “all necessary and appropriate force,” and that “it is of no moment that the AUMF does not use specific language of detention.” One could argue that the AUMF also qualifies as a statute authorizing electronic surveillance for purpose of FISA, with it once again being of no moment that the AUMF doesn’t mention eavesdropping.

The problem here is that Hamdi was already designated an "enemy combatant" and thus AUMF would of course cover him.

But the people being spied upon are not designated as "enemy combatants" or "foreign agents". Indeed, we can assume that there is not even a smidgen of probable cause to suspect that those being surveilled are "involved with terrorists" -- otherwise a FISA warrant would be obtainable.

To extend a legal decision concerning someone designated as an "enemy" to people for whom there is no evidence that supports that designation is to take seriously reductio ad absurdum arguments.

In terms of Congressional intent (a bad work in many UC classes, if I recall), this seems to strongly undercut Professor Sunsteins contention that the AUMF resolution may authorize this:The Bush administration requested, and Congress rejected, war-making authority "in the United States" in negotiations over the joint resolution passed days after the terrorist attacks of Sept. 11, 2001, according to an opinion article by former Senate majority leader Thomas A. Daschle (D-S.D.) in today's Washington Post.

Daschle's disclosure challenges a central legal argument offered by the White House in defense of the National Security Agency's warrantless wiretapping of U.S. citizens and permanent residents. It suggests that Congress refused explicitly to grant authority that the Bush administration now asserts is implicit in the resolution.

p lukasiak, you like to go to the extreme, much to the detriment of your argument. Who decides if someone is an "enemy combatant"? Did we check with the courts befor killing thousands of people in Afghanistan and Iraq? Is the President guilty of murder for the death of innocent civilians killed in Iraq? Of course not. You don't know whether the people on whom we are eavesdropping are enemy combatants or otherwise involved in assisting the enemy coered by the AUMF, and neither do I. Therein lies the problem. If the calls were from know al Qaeda operatives, the President has a decent case that he could do it under the AUMF. Presidential power is very broad in this arena. If the net was cast too wide, he stepped over the line. I think that will prove the interesting question. Those pesky facts. This is why I believe he should have obtained FISA warrants, regardless of whether they were legally required.

Brian,
Good point. If 18 USC 2511(2)(f)means no ther statute could control wiretapping other than FISA, what does the "except as authorized by statute" language in FISA mean? Surely it cannot be referring to FISA itself. In addition, i dont thin 2511(2)(f) can be read as prohibiting Congress from taking an action in the future that allows eavesdropping outside of FISA. It does make the case tougher than Hamdi, though.

Actually, it could just be referring to FISA--that would not be unusual in a criminal provision within a larger statute.

But in any event, it could also be referring to ordinary criminal surveillance under Title 18. Indeed, that is what 2511(2)(f) provides (electronic surveillance under FISA an be conducted through the procedures in FISA or Title 18). And, of course, it would make sense for FISA not to make it a crime for the FBI to conduct electronic surveillance in an ordinary criminal investigation.

So I think that is the obvious reading of how 18 USC 2511 and 50 USC 1809 work together: they make conducting such surveillance under the procedures in either the ordinary criminal provisions (Title 18) or the foreign intelligence provisions (FISA) the exclusive authorized means.

Mr. Maguire, it is you who are the extremist here -- assuming that Congress authorized DOMESTIC wiretaps in AUMF, and assuming that Bush's powers as C-in-C literally superceded all statutory and Constitutional law and precedent.

Your arguments are simply absurd. The AUMF was specifically in response to an attack on the US by individuals headquartered in Afghanistan -- to suggest that this authorization extends to American citizens who have NO KNOWN terrorist affiliations isn't even a rational argument---its "thinking" derived solely from paranoia and trauma. 9-11 didn't change everything, sorry. We still have statutes and a Constitution, despite your obvious wish that they were all burned in the inferno at the WTC.

You also are quite good at constructing irrelevant, straw-man arguments. The issue here is not " If the calls were from know al Qaeda operatives, the President has a decent case that he could do it under the AUMF", the calls of a "known al Qaeda operative" would be monitored under FISA (if the operative was an American) or under the "traditional" powers of the President to engage in surveillance against foreigners. The issue is one of TARGETTING people with no KNOWN terrorist affiliations on the off chance that by snooping on them we might find that they are, in fact "terrorist operatives."

Its a fishing expedition, pure and simple, and there are absolutely NO safeguards against the inappropriate use of information that is gathered in this fashion. They could be tapping YOUR phone, and deciding that you are a "troublemaker" and using information derived from the wiretaps to ruin your life (maybe by telling your boss that you are downloading porn from foreign based websites using company computers, telling you spouse about sexual indiscretions that you revealed in email or phone conversations, the possibilities are endless) --- and because there is absolutely no judicial review and the whole thing is done in secret, you couldn't do a damn thing about it. There was never any "probable cause" to spy on you -- you just happened to visit the wrong website or get a phone call from a number used by someone suspected of terrorist activities.

We have more than ample evidence to show that people in this administration are perfectly capable of using classified information to smear people -- including using NSA intercepts to do so (see Bolton, John) -- so we're not talking about "paranoia", but a clear pattern of misuse of highly classified personal information.

Move to North Korea if you want to live in a society where the Ultimate Leader can do whatever he chooses --- and please stop trying to turn this nation into a police state because a small group of religious nutcases armed with box-knives flew a couple of airplanes into buildings, and were able to do so because your Ultimate Leader virtually ignored warnings that such an attack was coming.

P Lukasiak,
You seem unable to respond to the points I raised or argue based on the law. I never even metioned C-i-C. You make no arguments, you just rant. If you actually think the debate is simply about whether the President could eavesdrop on US citizens with no known connections to terrorists, you are really out to lunch. Your suggestion that I set up straw man arguments gave me a good chuckle, though, as that is all you've proven capable of. Thanks for the childish ad hominem attacks as well. They brightened my day. The most pathetic thing about your rants is that you are attacking someone who thinks that the President should've obtained FISA warrants. I guess I should leave the country for having the audacity to suggest he might not have needed them.
Brian,
I'm not an expert on criminal statutes, but I didn't think a reference to the statute itself was such a common practice where the statute has only one provision to the contrary such as FISA. I could certainly be wrong, though. Your 2511 point remains a strong one, IMHO. Very insightful on your part. I'm not sure it carries the day in light of the broad authorization under the AUMF and its specific reference to not aborgating only the War Powers Act, but it might.

I should note that I was merely speaking hypothetically about the FISA-only interpretation of 50 USC 1809--I don't actually think that 1809 could plausibly be taken to refer only to FISA, precisely because it could not reasonably be taken to rule out authorization for electronic surveillance under Title 18.

On the more general point, I think the intent of Congress in the 2001 AUMF would be a bit more ambiguous if it were not for the USA-PATRIOT Act (although I note that implied repeal requires not just ambiguity, but rather a clear congressional intent to repeal). But given the amendment of FISA in the USA-PATRIOT Act, and all the things that were said at the time about the need to amend FISA in the USA-PATRIOT Act, and indeed all the things that were being said recently about the need to renew and strengthen the USA-PATRIOT Act, it is very hard for me to believe that Congress had already intentionally passed a statute authorizing the President to bypass FISA.

Tom Daschle states that Congress absolutely did not intend to grant the power to surveil American citizens:

"As Senate majority leader at the time, I helped negotiate that law with the White House counsel's office over two harried days. I can state categorically that the subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused."

Professor Sunstein's writings and interview repeatedly indicate he does not, because he and we cannot, know the scope of the wiretaps and acknowledges that no one has standing to challenge them. Both are true because the president's acts are completely secret, and according to the president, require no oversight of any kind. May I suggest these facts in and of themselves indicate the unconstitutionality of the president's acts? To allow the president to act in such secrecy regarding the invasion of citizen's constitutional rights vests too much power in the executive and runs afoul of our very system of government.

In regard to Hamdi and the authorization, each justice opined that even with the authorization, the constitutional right of habeus still obtained. Eight of the justices indicated both a habeus right and a due process right obtained even with the authorization. There is no reason I can see that the 4th amendment should be treated differently.

I would think the legal issue isn't just what surveillance was done under the President's executive order, but also what surveillance could have been done. My understanding is the executive orders were general and not specific. So do those orders conflict with what the constitution and any relevant laws prescribe? If the answer is "yes," then the President is at the very least irresponsibly authorizing unconstitutional and unlawful activities.

Ignoring for the moment the questionable proposition that warrantless domestic surveillance is "military force" within the meaning of the AUMF, there's a very basic textual problem with this argument.

The AUMF only authorized "necessary" military force to fight terrorists. Warrantless domestic wiretaps were not "necessary" to fight terrorists, because all legitimate purposes Bush could have wanted to achieve by warrantless domestic wiretaps were already served by statutory provisions authorizing the president to emergency, provided he obtained a warrant *after* conducting the wiretaps.

Bush's argument is "sometimes you just don't have time to do legal work. You have to wiretap those terrorists *now,* or else you'll miss vital information."

Fair enough. But the Patriot Act already authorized the president to do wiretaps *now.* All he needed to do was go to the Foreign Intelligence Surveillance Court (FISC) within 3 days *after* placing the wiretap. Consequently, any emergency wiretaps he could have needed to place were already authorized by statute, provided he got a warrant afterwards. Because Bush could already do emergency wiretaps by obtaining after the fact warrants, warrantles wiretaps were not "necessary" under the AUMF, and therefore not authorized.

There are two and only two reasons why Bush would want to evade the FISC when warrants were only required *after* the wiretaps were already placed.

One reason is that Bush believed the FISC itself was corrupted, that there were enemy agents on the court itself. Bush has not and will not assert any such claim. The proposition is ridiculous on its face. Unless and until we see some real evidence--not merely a claim by Bush, but actual evidence--that FISC was compromised, this argument shouldn't even be considered.

The only other reason is that Bush wanted to spy on people FISC wouldn't approve of. Who could that be? Who might Bush want to spy on who FISC wouldn't approve of? We already know FISC was *incredibly* generous in granting warrants. Of thousands of applications for warrants, FISC denied only a handful, less than 10.

Unless we see evidence that FISC was compromised, the conclusion is inescapable: Bush was spying on Americans he shouldn't have been spying on.

Bush was spying on Americans without any connection to foreign powers or terrorists.